I. Introduction
Modern legal philosophy in Britain began, with not quite poetic timing, around a decade before 1963. In the 120 years following the publication of The Province of Jurisprudence Determined in 1832, British jurists – what few there were – took no great strides beyond what John Austin had said in those lectures. If we switch our attention from jurists to the judiciary of this period we find, predictably, that most judges showed no interest in approaching law in any way that could properly be described as philosophical. When we look closely, however, it becomes clear that judges were occasionally as disposed to bringing some philosophical slant to their analyses of legal problems as were their juristic counterparts. So it was – to take just a few examples – that Lord Halsbury justified strict stare decisis,Footnote 1 that Wright sought to demonstrate the illogicality of implied contract analysis,Footnote 2 and that Parmoor and Macmillan (and again, Wright) argued that there is a necessary connection between law and morality.Footnote 3 Anyone looking for evidence in Britain between the 1830s and the 1950s of something tantamount to philosophising about law would be as well advised to look to the courts as elsewhere.
The figure at the centre of this study was, as British judges go, more philosophical than most, though it would also be right to say that he was much more than a judge. Lord Radcliffe was appointed as a Lord of Appeal in Ordinary in 1949, at the end of the moribund era in British jurisprudence. Within fifteen years he had retired, much of his judicial career having been taken up with committee rather than court work. That he was regularly called on to help with political difficulties by chairing inquiries and writing reports (normally unanimously agreed, and bearing “the unmistakeable imprint of his … magisterial and lapidary” proseFootnote 4) struck some as a serious waste of judicial talent,Footnote 5 though Radcliffe might not have seen it that way.Footnote 6
What is certainly clear is that he is as intriguing a figure as one might ever encounter in the history of English law. Even though his judicial career was quite short, and much of the work for which he is remembered was outside the law, he is often, and justly, lauded as one of the great legal minds of the twentieth century. At heart, he was an Aristotelian natural lawyer with anti-utilitarian instincts and a nuanced grasp of how reason shapes human conduct. He generally disliked legislation, to the extent that he did not regard it as authentic law, but he was no common-law glorifier and he appreciated that the proliferation of statute law was a phenomenon that had to be reckoned with. He despaired over what he considered to be the vacuity and vulgarity of the modern world and the pusillanimity of a generation cosseted by social insurance and welfare provision. Yet his view of humanity was essentially optimistic. Like so many men of his generation and upbringing, he was disinclined to show emotion or to say much about himself, and indeed those who have sought to describe him invariably depict an aloof and austere representative of the great and the good (The Great and the Good being the appropriate if predictable title of a book about his life). But he was an exemplary communicator, who recognized that expressing his own convictions about the world and its problems meant articulating carefully what he perceived to be the truth of any matter before him, without sidestepping questions that can only be properly answered by revealing personal values and beliefs. Much of what he wrote – even on the dustiest topics – is marked by introspection and a commitment to telling what he understood to be the real story.
The main objectives of this study are to offer an account of Radcliffe's accomplishments as a lawyer, statesman and intellectual, to analyse his conception of law, and to show that he developed an intriguing and challenging, if fairly rudimentary, natural law approach to the question of what constitutes legal authority. The study also has a secondary objective: to counter the common jurisprudential characterization of the judge as courtroom adjudicator and not much else, and to draw attention to the fact that the influence judges have over legal and social policy will sometimes be attributable to their extra-judicial endeavours. Lord Wright, a strong supporter of the defence of contributory negligence, chaired the Law Revision Committee responsible for the report that led to the establishment of contributory negligence as a statutory defence.Footnote 7 Lord Kilmuir, who considered himself largely responsible for that defence making it onto the statute books,Footnote 8 took pride in “constantly sending subjects on which the law had been criticized to be examined by the Law Reform Committee, and … aimed at getting at least one Law Reform Bill … dealt with every year.”Footnote 9 Lord Gardiner is remembered primarily for his work as a law reformer, and particularly as the driving force behind the Law Commission in its early years.Footnote 10 Since World War II many judges, including lower court judges, have headed royal commissions and departmental committees.Footnote 11 Radcliffe, we will see, is an exemplary illustration of the judge who is so much more than a judge; to confine our attention to the cases he decided would reveal little of the mark that he made on law and public life.
II. Radcliffe's Life
“Let a fairy grant me my three wishes,” Radcliffe remarked in 1961, “I would gladly use them all in one prayer only, that never again should anyone using pen or typewriter be permitted to employ the word ‘Establishment’ ”.Footnote 12 In fact, Radcliffe's problem with the word was other peoples' use of it; he felt he knew perfectly well what made someone a member of “the Establishment” and indeed, having made the remark just quoted, proceeded unselfconsciously to explain the concept. What really irked him were those who invoked the term to “set off one more cannibal dance round the idea of authority”, who constantly railed against “a force styled ‘They’ ”.Footnote 13 No doubt many a culprit would have had Radcliffe himself in their sights. He was wealthy,Footnote 14 and he made a point of opposing efforts to impose extra taxes on the rich.Footnote 15 After World War II he became “unofficial number one” on the list of usual suspects upon whom governments of the period called when seeking to get out of a fix – especially when the fix in question was intellectually demanding.Footnote 16 Sir Alan Herbert despaired of government by “Radcliffery” and wondered if ministers might ever again be able to do their jobs “without bothering Lord Radcliffe.”Footnote 17 Having been made Chancellor of Warwick University in 1967, Radcliffe soon found himself leading an inquiry into the University's handling of information about its students and staff.Footnote 18 One of those at the centre of the controversy was in no doubt as to Radcliffe's Establishment credentials: “he belongs securely to – and has been a distinguished member of – a governing class …. We (the governed) are here and he (the governor) is there.”Footnote 19
Such characterizations are simplistic – of precisely the type that left Radcliffe exasperated – but hardly surprising. That he was destined for anything other than high office always looked improbable.Footnote 20 He was born in 1899, the son of an army captain, and he was educated at Haileybury – originally established by the East India Company as a training college for the civil servants of India – and at New College, Oxford, from where he graduated with a First in classics in 1921. After graduation he was elected a Fellow of All Souls, but he found the academic environment unedifyingFootnote 21 and in 1937, when his fellowship was due for renewal, he declined to be considered for re-election. By this point, he was a successful chancery barrister.Footnote 22 But in 1939 he abandoned his bar work in favour of war work, a move that led to his appointment in 1941 as Director-General of Brendan Bracken's Ministry of Information.Footnote 23 He returned to the bar in 1945, apparently eschewing a political career on the basis that in the post-war world he should devote his energies to promoting “the independent values of the law”.Footnote 24 When he was appointed directly to the House of Lords four years later he anticipated that the pace of his work-life would slow.Footnote 25 But it is unlikely that it did, and it is certainly the case that the switch from barrister to Law Lord took him away from the law for long periods of time. Two public appointments came his way in 1947: chairmanship of a committee of inquiry into the future of the British Film InstituteFootnote 26 and, on the passing of the Indian Independence Act, the far more onerous task of negotiating the boundary between India and Pakistan.Footnote 27 Although some commentators (most famously Auden) have disparaged Radcliffe in this last role – his unfamiliarity with British India, his reliance on inaccurate information and his completion of the job in a matter of weeksFootnote 28 – his efficient handling of the problem made him an obvious choice when, in the mid-1950s, the Eden government sought someone to draft a constitution balancing Greek and Turkish interests on Cyprus.Footnote 29 By this point he was a chairman in demand, and by 1964 he had led public inquiries into taxation of profits and income, the working of the monetary system and security procedures in the public service.Footnote 30 Although he could have the followed in the path of some other Law Lords and sat on the occasional case after retiring, he never did; indeed, having served the fifteen years necessary to qualify for a full judicial pension, he could have waved farewell to all public service. But the inquiry work kept his attention – he was an admirer of consensus-facilitating or “trimmer” tradition in politics, as exemplified by Lord HalifaxFootnote 31 – and in the decade before his death in 1977 he not only produced the Warwick University report but also chaired committees of Privy counsellors appointed to inquire into official broadcast-restriction requests (D-notices) and the publication of ministerial memoirs.Footnote 32
One could be forgiven for regarding this as a sketch of a grey-suited mandarin. But this impression starts to dissipate once we locate Radcliffe outside the committee room. He collected fine art, particularly Impressionist works.Footnote 33 He wrote articles for newspapers and magazines, expressing strong views on topics such as the literary merits of Rudyard Kipling, the question of where the British Library should be sited and the dangers of allowing the world's greatest art treasures to go to the highest bidders.Footnote 34 His tastes were not exclusively highbrow: he played tennis and golf and was a cinema devotee.Footnote 35 While he disapproved of flippancy, jokes and eagerness to impress in judicial decisions,Footnote 36 he considered mordancy to be “an important part of the make-up of a lawyer”Footnote 37 and knew how and when to offer a dry observation.Footnote 38 Most interestingly of all, his regard for others was not dictated by convention: he married a divorcee with two children, and befriended and was immensely loyal to people – Bracken is an example, as is the art collector and philanthropist, Calouste GulbenkianFootnote 39 – whom many of his professional associates might have kept at arm's length.
It would be stating the obvious to say that the deeper one delves into the detail of Radcliffe's life, the more nuanced is the character that emerges, and one might fairly ask if there is a point in delving to any depth whatsoever if the exercise amounts essentially to talking up someone's character with a bit of biography. Anyone so sceptically inclined should be warned that we are not done with the biography yet. The essay will conclude with something approximating a denouement – a brief analysis of a period in Radcliffe's life which seems to reveal more about him than does anything mentioned so far. But it should also be emphasized that this essay is not intended as a biography. It concerns Radcliffe's beliefs and arguments rather than his life, but builds from the premise that it is not possible to attend to the former without providing some account of the latter: the beliefs and arguments have contexts and ends, and we are unlikely to derive much from what Radcliffe had to say unless we have some idea of where and why he said it. Because we are now equipped with a sketch of his life, it should be easier to contextualize his beliefs and arguments economically once we begin to analyse them.
III. Liberal Authoritarian?
As good a place as any to set about trying to understand Radcliffe's beliefs and arguments is the account of the man to be found in Robert Stevens's magisterial Law and Politics.Footnote 40 Although Stevens is unimpressed by Radcliffe's natural law instincts, his overall assessment of Radcliffe's contribution to law and public affairs is incisive and generous; in particular, he does a thorough job of showing that Radcliffe had a sophisticated understanding of the common law, the judicial function, and the relationship between the judiciary and the executive. Stevens considers Radcliffe torn, however, between “the needs for order and the support of authority on the one hand and his instinct for civil liberties on the other”.Footnote 41 Was Radcliffe really torn thus?
He certainly stood up for civil liberties. There exists, he argued, a “complex of liberties which are needed to preserve the freedom of the human spirit” – “marital and parental relationships, freedom of religious worship, freedom of labour, and freedom of artistic and productive expression” – “which deserve special protection from outside invasion”.Footnote 42 These liberties are not always those preferred by the majority: the “real art” of the political theorist – that of “analysing and expounding the circumstances and occasions upon which … the wishes of a majority … ought not to be given effect to at the expense of a minority” – is one in which “our public life is almost totally deficient.”Footnote 43 This deficiency combined unfortunately, he argued, with a tendency on the part of administrators “to believe that authority will not survive unless it can be a judge in its own cause, safe from being held wrong by someone else.”Footnote 44 At the Ministry of Information in the early 1940s, he stuck to the principle that war-time censorship is deleterious to public morale and permissible on security grounds only.Footnote 45 After Lord Atkin excoriated the majority's upholding of detention without trial in Liversidge v. Anderson,Footnote 46 Radcliffe wrote to congratulate him.Footnote 47 Although the House of Lords was convention-bound not to depart from Liversidge before 1966, Radcliffe had begun to mark out the path of judicial retreat from the decision as early as 1950.Footnote 48 The first of his many letters to appear over a half century in The Times questioned whether Sacco and Vanzetti had been granted due process of the law.Footnote 49 In his judgments he opposed state interception of written communications between married couples,Footnote 50 extradition of fugitives to their countries of origin where doing so would endanger their lives or where their offences are political in character,Footnote 51 and upheld land occupants' complaints that public authorities had acted ultra vires in seeking to remove or relocate them.Footnote 52 In parliamentary debate he argued that the BBC must be kept “free from interference, whether it is from the Executive, or from Parliament, or from anybody else”,Footnote 53 and in his Warwick report he backed the right of students and staff to encourage local trades union militancy.Footnote 54 He was no less inclined to make the case for freedom of information. The Warwick students should have a right to see their personal files, he contended, and those files should not be used to record legal convictions and medical histories.Footnote 55 While, as the chair and author of committees and reports on security procedures, he endorsed rigorous vetting of officials on whose integrity national security depended, he also encouraged government departments to be less uptight about downgrading and declassifying information.Footnote 56
That he was not in thrall to authority is particularly evident from his response to the Wilson government's D-notice debacle. When The Daily Express published an article in February 1967 which the government thought in breach of D-notice procedures, Harold Wilson appointed Radcliffe and two other Privy Councillors to report on the matter. Once Wilson got wind of what the report was going to find – that, all things considered, “it would not be right to say that the article amounted to a breach of the ‘D’ notices”Footnote 57 – he arranged for the simultaneous publication of a White Paper which concluded that “the article was inaccurate in matters of fact and misleading”, and that “[t]he view of all those concerned on the Government side … is that the ‘D’ notices do apply, and always have applied, to the activities now at issue.”Footnote 58 Everyone in Wilson's cabinet appears to have considered this a foolish manoeuvre: “I shouldn't have thought there was a single person there”, Richard Crossman recalled, “who thought that it was a good thing to publish a White Paper instead of accepting the Radcliffe Report.”Footnote 59
When, in July 1967, Radcliffe spoke to the matter in Parliament, “he took apart the Government's case with the artistry of a surgeon, and at the end left it scattered about the operating theatre headless and limbless.”Footnote 60 The White Paper, he said, traded in “general statements about significance to security, … breach of security, [and] national security”Footnote 61 as if “what is called security is the only important thing … which is indulged in by this country” and as “if anybody [who] has committed what” the government “call[s] a breach of security … has done wrong.”Footnote 62 Since the reality of the matter is that governments “want not … a free Press, but a managed … Press”, there is no reason to think “that the Press … should always give way to”, or recognize a “duty … to have complete trust in what is advanced to” it by, “the Government.”Footnote 63 Just “what the purpose of”Footnote 64 the White Paper was supposed to be – with its emphasis on how accurate reporting is “fundamental to national security and the public interest”Footnote 65 – was lost on Radcliffe, not least because all the security rhetoric in the world cannot disguise the fact that a free press will resist management by fiat. The managers of the press, rather, must earn the respect of the press:
you cannot order complete trust by a White Paper. People will give you a measure of confidence if your acts over a period coincide with your words and if your words are found out to be true. But that has to be worked for and earned.Footnote 66
There were Wilsonite retorts to the effect that Radcliffe was a “libertarian” who lacked “objectivity”,Footnote 67 that he espoused a “liberal philosophy” which led him to be “over-simplistic” in his “comments on security.”Footnote 68 But these were the complaints of the flustered. The more common response echoed Crossman's: that Radcliffe's speech “was annihilating and unanswerable”, “the most effective quiet rebuke of a P.M. by a public servant of modern time.”Footnote 69
It seems beyond controversy to say that Radcliffe was liberal in outlook. The notion that he was also authoritarian is more difficult to demonstrate. His assessment of Liversidge as a lamentable decision did not stop him from believing that the judiciary sometimes should defer to executive decision-making,Footnote 70 and that government surveillance could be “exercise[d] … for a right national purpose”.Footnote 71 But such beliefs show that he understood that civil liberties cannot go unfettered rather than that he had an authoritarian disposition. He was, none the less, not averse to offering the occasional reactionary reflection which suggested that the description of him as authoritarian might not be completely inappropriate. Respect for legal authority, he remarked to a Cambridge University audience in October 1949, “is not yet a cause for contempt …. [T]here remains the great mass of us who believe that we should keep the law, even if it is inconvenient to us”, and there are still those who, out of “good commonsense”, regard the judge “as a symbol of the wrath that visits the wrongdoer”.Footnote 72 But in his address to the Law Society in October 1964, he saw matters very differently: “[o]ut of the few institutions of this country that ought to be accorded national status, one” – presumably he meant the Trades Union Congress – “blindly perpetuates a radical myth that finds its enemy in all authority, and the other” – presumably he meant the Labour Party, which had been elected to government the week before he spoke – “clings to an outmoded formula that denies the acceptance of any law beyond that of its own will …. [I]t is a serious question whether England is not rapidly becoming … an ungovernable country.”Footnote 73 “We have by now lived for too many generations in a revolutionary climate of opinion” which is “gradually eroding by criticism the rock of its institutions and its faiths but failing to form any solid substance to take their place”, he told an audience at the London School of Economics the following year; we need today more self-confident statesmanship or “[n]avigation”, “more persons of experience and authority to speak and act boldly and sincerely, without deference to the subtleties of public relations or the imputed susceptibilities of youth or of egalitarian opinion.”Footnote 74
One of Radcliffe's own bold, deference-free proclamations showed him to be not so much authoritarian as naïve. When, in February 1969, he lectured to the Institute of Race Relations on the “country's immigration problem”,Footnote 75 he began by remarking that although “all good men must have in mind … the promotion of harmony and mutual acceptance”Footnote 76 there has clearly opened up a “resentful gap … between a very large part of the population of this country … and those whom they see as responsible for the wave of coloured immigration.”Footnote 77 Closing this gap, and also ensuring that immigrant communities did not “limit their chances of that full equality of treatment which the citizens of one country should share with each other”,Footnote 78 was partly the responsibility of immigrants themselves: they had to abandon their “determined, perhaps … growing, rejection of the idea of integration”Footnote 79 and their “‘chip on the shoulder’ grievances”.Footnote 80 How does one integrate “into a fairly complex urban and industrial civilization a large alien wedge, which in many ways is as ready to isolate itself within that community as some members of the community are to keep it isolated”?Footnote 81 “[P]atient and sober attention” to the problem reveals that the key to progress rests in “a large scale, continuous, nationwide campaign of persuasion.”Footnote 82
Persuasion as to what? Radcliffe seemed intent on persuading his audience of only one thing: that “prejudice and discrimination” – “the two key words” in race discourse – need not “carry any ordinary association of moral ill-doing”,Footnote 83 since one could be making distinctions deliberately in favour of A to the disadvantage of B on grounds which are reasonable and commendable. “I try to distinguish in my mind between an act of discrimination and an act of preference,” Radcliffe confessed, “and each time my attempt breaks down.”Footnote 84 In both instances one is making distinctions of value as between persons or things. The “substance” of the Race Relations Act 1968 seems to be simply that “[y]ou must not have ‘bad thoughts’ ”,Footnote 85 an injunction which ignores completely the fact that “persons such as employers and landlords” cannot be prevented from discriminating or being prejudiced in the sense of exercising “preference as between members of the public that they serve”.Footnote 86 Laudable though it is to emphasize the principle of “honest dealing between man and man”Footnote 87 and to encourage indigenous citizens to be less afraid or suspicious of the “strangeness” of the immigrant,Footnote 88 and as important as it is that the immigrant community does not “cling[] to its native ways and so limit[] continually … real outside contacts”,Footnote 89 trying to teach people not to discriminate or be prejudiced is futile and wrongheaded.
Anthony Lester, responding to Radcliffe's lecture, wondered how Radcliffe could have failed to see that “immigrants … must be entitled to equal rights and liberties on the basis of their common citizenship”.Footnote 90 Radcliffe's lament that the failure of immigrants to integrate would be an obstacle to their “full equality of treatment” suggests he grasped the point well enough.Footnote 91 Even if the criticism had been well aimed, however, it would hardly have been Lester's most damning. Radcliffe, he argued, seemed not to see that racial discrimination – bigotry – cannot be equated with private preference or discernment,Footnote 92 and that the race legislation outlawed bad conduct rather than bad thoughts.Footnote 93 Perhaps the greatest weakness of all in Radcliffe's lecture was his combining of an idiosyncratic and, in context, largely irrelevant argument – that progress depends upon persuading people that there is no strong analytical distinction to be made between discrimination and preference – with language which (again considering the context) was anything but sensitive: the description of the immigrant population as “a large alien wedge” with “‘chip on the shoulder’ grievances” would not have been out of place in the notorious “rivers of blood” speech which Enoch Powell had delivered the previous year.Footnote 94 If this typified the bold and sincere language that Radcliffe wanted to hear from people in authority, perhaps it is no bad thing that his appeal seemed generally to be regarded, as he put it, as “very old-fashioned”.Footnote 95
IV. Disenchantment and Curiosity
Even if we accept the characterization of Radcliffe as liberal and authoritarian, the notion that he struggled to reconcile his “libertarianism and authoritarianism”Footnote 96 does not quite ring true. That Radcliffe defended liberty on some occasions and argued for its restriction on others indicates not that he suffered from some “internal conflict,”Footnote 97 but that he believed, quite sensibly, that authority works to sustain as well as stymie liberty, and that judges and other public decision-makers must determine not if but how particular freedoms are to be regulated. The assessment of one of his former committee cohorts points us in the right direction: “Radcliffe was a Conservative in the best English sense of that term – he cared very much about liberty and he believed that liberty and fair treatment can only be secured by stable institutions and particularly by stable laws which define and circumscribe the limits of individual freedom in society.”Footnote 98 Since Radcliffe came increasingly to question whether we have stable institutions and laws – recall his lament regarding lack of navigation from those in authority – it is hardly surprising that he appeared to consider the prospects for liberty and fair treatment, along with other values that he cherished, to be imperilled in the modern world. “‘The world has gone beyond me’: I believe that it always did,” he wrote, “even from the earliest years”.Footnote 99
That he was a man out of time Radcliffe was in no doubt. “[T]he ‘universal man’ admired of earlier centuries” – whose training tended to be a “general literary education” and who felt no obligation “to relate [his] opinions … exclusively to the canons of economic science or to identify public morality with the enlargement of the Gross National Product” – would be “lost” in an era which places so much value on “the specialisation of learning”.Footnote 100 Anyone of “the ‘good old school’ ” would probably also be bewildered by “the vogue to present today as if it were necessarily better than yesterday”, since those who accept this “shallow and almost perverted idea of progress” never seem to explain why “the alteration” of “the conditions under which human life has to be lived” will change “in any important way the terms of the human dilemma itself”, or why law should always expected to move with the times rather than that “changing ideas [should] sometimes adapt themselves to law”.Footnote 101 To be progressive-minded, to belong to this “revolutionary world, must be intensely exciting”, but while “the excitement … communicates itself to the general public … it does not”, Radcliffe confessed, “communicate itself to me. I wish that it did.”Footnote 102
That last sentence bears consideration. Radcliffe was indeed “deeply out of sympathy with his age”, and possessed of an “acute sense of tragedy in a postwar society whose condition, in one way or another, he had spent long hours dissecting in committee rooms.”Footnote 103 But note that he was disenchanted with, not disengaged from, the modern world. People fascinated him,Footnote 104 and though he was prone to outbursts of despair he believed that “one cannot run a lifelong estrangement from one's times” and that one must “try, however crustily, to be vigilant always to discern the best among much that one can neither comprehend nor admire.”Footnote 105 Thus his observation that while the younger generation of today – this was 1961 – may be depressingly anti-authoritarian, we should commend their “marked self-reliance”, their “courteous lack of interest either in institutions or in conventions”, and their “almost puritan attention to the importance of an integrated individual personality”.Footnote 106 The state might act as censor, as too might timorous editors and media organizations intent on celebrating “sheer inanity” – Radcliffe took Oliver Wendell Holmes's view that the best test of truth is the free trade of ideas – but this generation “is not … likely to consent to a rationing of ideas or to be embarrassed by words.”Footnote 107 Radcliffe was not one to dismiss all that held no appeal for him.Footnote 108 Rather, he wanted to make sense of many facets of the modern world which he found unsettling and alienating but which were accepted or welcomed by others. “After all, what kills ideas is disillusion.”Footnote 109 The alien should be an intellectual challenge.
So it is that we get to the heart of this essay. Radcliffe believed that human fulfilment depends upon the maintenance of liberty, fairness and other goods, and that such goods cannot be maintained without the stability of law.Footnote 110 He also doubted that there is stability of law, and so he was worried that these goods might somehow be endangered. But this was his starting point, not his conclusion. What we find developed throughout Radcliffe's work is a highly original account of mid-twentieth century law in crisis, and an argument to the effect that the crisis might be overcome were we to take a mature and philosophical approach to the question of how authority is appropriately maintained through law. Let us next consider how he explained law, and what he understood the crisis surrounding law to be, before turning to his reflections on authority.
V. An Imperfect Art
“[E]minent lawyers”, Macaulay wrote, make “arguments … abounding with … analogies and … refined distinctions” worthy of “perfect masters of logic. But if a question arises as to the postulates on which their whole system rests …, these very men often talk the language of savages or of children.”Footnote 111 Radcliffe transcribed the observation in his commonplace book,Footnote 112 no doubt because he concurred. Lawyers who argue by logical deduction are looking “to put the icing on the cake, not to bake it”, he claimed, for the truth they seek to demonstrate is intelligible only “if you have already been converted to the truth” (leave aside the fact that a “professor of logic would find in even famous judgments some sad howlers”).Footnote 113 The assumption that one “possesse[s] … logical power … independent of … other powers … has not persisted with me”, he added, for “[i]t seems … that thinking is a function of the whole of one's personality, with all the interplay of emotions that … claim and receive recognition from one's reason”, and that the judge therefore brings to a decision “not … only his command of the reasoning process or his knowledge and learning … but his experience of life and the structure of thought and belief that he has built upon it.”Footnote 114 It seems difficult, Radcliffe surmised, to imagine any lawyer concluding otherwise: “I have the impression that lawyers more or less unconsciously accept that their formal process is not their real one.”Footnote 115 Whatever they might think, it is surely obvious – though Radcliffe thought the point needed regular repetition – that law is not science.Footnote 116 Rather, it entails “the exercise of an art”: “in the Law we practise an imperfect art,” whereby “the judgments which [judges] pass … are valid only within the terms which [they] impose upon the insoluble complexity of life.”Footnote 117
Radcliffe looks to be making the familiar point that judges, though subject to various external and self-imposed constraints, adjudicate creatively. But this is not what he wants us to grasp. Of course, judges cannot help but be lawmakers. There is no “more sterile controversy than” that of “whether a judge makes law”, given that the “personal element in the judicial decision” is “inescapable”.Footnote 118 Even the judge who “commend[s] himself to the most rigid principle of adherence to precedent” will find that, “when he repeats” what “his predecessors … decided before him[,] … their words … mean something materially different in his mouth …. The context is different; the range of reference is different; and, whatever his intention, the hallowed words of authority themselves are a fresh coinage newly minted in his speech.”Footnote 119 Yet if all judicial decisions add to the law in some way or other, the concept of judicial creativity is otiose – unless we can show that some creative initiatives are inherently more valuable than others. It is unclear, for Radcliffe, how we could ever show anything of the sort. “Is it creative to reject a principle previously accepted and not creative to accept it and treat it as a base for further reasoning? Is it creative to decide that the law does not afford a remedy in a particular case where an administrative act is challenged? – or can it only be creative if the decision allows the act to be upset?”Footnote 120 Creativity can only be a valuable category for the purpose of assessing judicial decision-making if it helps us to answer such questions. Beware, he insisted, the language of judicial timidity and boldness: “it is quite possible for a man to be quite bold and yet think that the law has no place in interfering in this particular field, and it is not really due to ‘timidity.’ ”Footnote 121
Judges are lawmakers, then, but it makes sense to be circumspect about the language of judicial creativity.Footnote 122 Likewise, we should pause before speaking of judicial legislation. Judges are not, should not try to be, and should not draw attention to those instances where they seem to be mimicking, legislative lawmakers.Footnote 123 Furthermore, “a court of law is not, and is not free to be, a court of ethics”Footnote 124 – which is not to deny that courts are entitled to “work[] out and giv[e] shape” to “rules of fair conduct”,Footnote 125 or that judges err when they “dissociat[e] their decisions from any moral or social significance whatsoever”.Footnote 126 Although the case-by-case nature of judicial lawmaking means that the common law develops at glacier pace,Footnote 127 it is beyond doubt that development does occur.Footnote 128 “True, judges do not reverse principles” – this was Radcliffe writing apropos of Law Lords and their own decisions before the Practice Statement of 1966Footnote 129 – “but they do modify them, extend them, restrict them or even deny their applicability” in “the light of new combinations of facts”, so that there is added to “the body of the law … a new element … which in some degree modifies the whole.”Footnote 130
Radcliffe's own approach to judicial lawmaking was, by the standards of his day, candid, occasionally bordering on radical. Like Lord Gardiner, he doubted the need for the House of Lords as a judicial bodyFootnote 131 (this after spending fifteen years as a Law Lord) and was of the view, unlike Lord Reid, that if the House of Lords was to endure as a final court of appeal then it should at least abandon the practice of delivering multi-opinion decisions.Footnote 132 Ambiguity in judicial opinions, he suggested, is not always something to be lamented,Footnote 133 and he counselled against attaching “too much weight to particular phrases or passages in the body of a decision”Footnote 134 (as if a precedent offered up what Frederick Pollock once termed an “authentic form of words”Footnote 135). Lawyers and judges do well to resist the modern “tendency … to discover leading cases before they have proved that they have in them the quality to lead”,Footnote 136 and precedents should not be followed complacently or slavishly or approached over-reverently;Footnote 137 a judge would “be a great fool if” he “thought a particular precedent was wrong” but he felt unable to “put it aside and develop something else”.Footnote 138 When, in 1966, the House of Lords abandoned its convention of being bound by its own precedents, it “cast aside the shackles it probably never should have worn.”Footnote 139 Radcliffe's own judgments – all pre-1966 – show that he never considered the shackles to be particularly constraining. The ambiguity as to the facts of, and the peculiarity of the pleadings in, some of the cases on which he sat led him to declare that they had little or no value as precedents.Footnote 140 Tax law precedents caused him especial concern: the law of taxation is changed annually with the budget, and so “the judge needs to be particularly circumspect” when assessing the authority of earlier judicial decisions, he insisted, given the strong possibility that case law has been superseded by finance legislation.Footnote 141 Although, in the tax law cases in which he participated, he did not – could not – explicitly overrule House of Lords precedents, he did sometimes decline to apply authorities which he considered “unfortunate”,Footnote 142 or confined to their facts rather than establishing a general principle.Footnote 143 The Practice Statement had been unnecessary if not “foolish”, he stated privately in 1973, because ‘if you kept your head and sat back, you could give what you thought was the right decision anyway”.Footnote 144
Much of what Radcliffe had to say about the judicial function makes it tempting to place him squarely within that tradition of English jurisprudence which praises the common law as a self-revising repository of legal wisdom. It matters, he argued, how law is created: there is a “very great difference in psychological impact between”Footnote 145 statute law, whereby “the citizen's rights and duties are made for him, as it were, overnight”,Footnote 146 and law which emerges from “custom” – “the great spring of law”Footnote 147 – so that it becomes “established in the very bones of your society.”Footnote 148 “[I]n the life of any people” there is an “inner instinctive sense of purpose and responsibility that neither social sanction nor Act of Parliament has power either to loose or to bind”.Footnote 149 Statute law is unlike the common law, moreover, because statutes “do not share any common legal principles”, indeed because they seem to lawyers “not quite the equivalent of real law”Footnote 150 – more “ideas of law” than “law itself”.Footnote 151 “[L]awyer's law” is “judge-made law”.Footnote 152 We do well, Radcliffe urged, to remember that judges have a responsibility to differentiate their authority from that of legislatures, that a task of the courts “is to settle, if you like to redefine, the general principles and conceptions of the law we are to live under and then to find a way of bringing governor and governed together before [them], when they are at issue, without turning the judge either into a mere administrator or into a mere obstacle to administration.”Footnote 153
For two reasons, however, it would be oversimplifying matters to conclude that Radcliffe lauded the common law tradition. First, the rhetoric of principle, though he was happy to use it occasionally, left him unconvinced: the assumption “that there are major principles at the back” of the common law “to which detailed rules can be made to conform” is one which – given that “[t]he English common law seems … rather short on philosophy and rather uncertain in logic” – probably cannot be “push[ed] … very far.”Footnote 154 Secondly, and more importantly, although Radcliffe was generally uncomplimentary about legislation, he knew that, in the second half of the twentieth century, it was facile to think of law purely or even mainly as common lawFootnote 155 (the significance of which seemed to be decliningFootnote 156) and important to recognize that Parliament was markedly extending the realm of statute law year upon year. The continual growth of statute law represented, for him, “the real [legal] crisis”Footnote 157 of modern times. While legislation is sometimes necessary and even desirable,Footnote 158 the general explosion of “[p]ara-law” – statutes, orders, by-laws, regulations, directions – has resulted in the blurring of “the usual line of division”Footnote 159 between legislative and executive action: “laws, even on matters of critical importance, pop out, play around, and disappear again, like rabbits in a warren …. [T]he legislature has become merely the law-making agent of the Executive …. [W]e are operating … the system that … the framers of the American Constitution … insisted … it must be scrupulous to guard itself against.”Footnote 160
This development represented a crisis, Radcliffe believed, because it put the future of legal authority in peril. “[M]ost judges”, he observed in 1949, would probably “say that in a large proportion of the cases that come before them the rights of the parties are, if not determined, at any rate substantially affected by the terms of some recent Act or Order …. The respect for law … cannot survive the spectacle of its continual making and remaking before our eyes.”Footnote 161 The problem was not simply that there was too much para-law, or that many legal officials regarded this law as “either an impediment to be got rid of or a servant to execute their orders.”Footnote 162 There was also the modern misapprehension that legislation is not only “an expression of the popular will” but in need of “no other justification than that it is such an expression”.Footnote 163 If all we require of law is that it represents the will of the majority, legal decisions might as well be based on opinion polls, “as if they were themselves the determinant of value judgments in political life”Footnote 164; within such a system there is “hardly … much place for judges.”Footnote 165 The fact is that legal officials who take their duties seriously do more than just “draw [upon] … the current volumes of Statutory Rules and Orders”;Footnote 166 rather, the very system of law is something which, “in the last resort[,] … holds their respect and their allegiance”Footnote 167 because “the reasoning” informing its rules constitutes “a force outside themselves, to whose impulses they are bound to submit.”Footnote 168 One of the classic modern analytical-jurisprudential explanations of legal authority – that legal rules are authoritative because they offer reasons for action which cut off the need for independent deliberation by actorsFootnote 169 – would not have been lost on Radcliffe.
VI. The Problem of Authority
Radcliffe thought that the solution to the crisis in mid-twentieth century law might be the development of a philosophical approach to the question of how a legal order maintains genuine authority, rather than mere control, over citizens.Footnote 170 Austinian positivism was not the answer;Footnote 171 nor, Radcliffe believed, was “the material one needs” for an answer to be found in Kelsen's Pure Theory of Law, Maine's historical jurisprudence or the writings of the American legal realists.Footnote 172 Although the claim that legal authority depends upon the capacity of rules to operate as exclusionary reasons would have made perfect sense to him, furthermore, the argument that he sought to advance was rather different, and will take some unravelling.
The easiest place to start is with that remark of Radcliffe's, reported earlier, in relation to the Wilson government's D-notice fiasco: trust has to be worked for and earned. Likewise legal authority: “Respect for law for its own sake is a slow growth.”Footnote 173 But how is this respect to be accumulated? Indeed, “[w]hat really prevents men who have authority from abusing their authority? … [W]hat is it, if it is not force, that leads men to give obedience to authority?”Footnote 174 To the question of “how it is” that the law “commands the allegiance of the best part of [our]selves”, Radcliffe confessed, “I can supply no convincing answer”.Footnote 175 The fact that we do not, and probably cannot, know “the whole truth” about something, however, does not mean that it is pointless trying “to come to closer terms” with that truth.Footnote 176 When, in 1957, Radcliffe was invited to the Northwestern University School of Law to deliver the Rosenthal Lectures, he initially declined. But after some cajoling from Northwestern's Dean,Footnote 177 he had a change of heart.Footnote 178 In the mid- to late-1950s he had written privately of his interest in natural law – “not [as] a fixed set … of principles” but as “a certain approach to the nature of law and of its relation to the whole of man's life”Footnote 179 – and the Rosenthal Lectures provided him with an occasion to develop his reflections on the theme. Natural law, he argued, invariably occupies the margins of jurisprudence – “too impalpable to destroy and yet too enduring ever to be forgotten” – for it “was never intended primarily for lawyers” and is unlikely ever to be “more than a minor formative influence upon the work of the judge.”Footnote 180 Nevertheless, “[w]e must never … lose touch with the idea of Natural Law or give up the belief that all positive law bears some relation to it.”Footnote 181
Why not? Because a “system of law … needs a standard of reference outside itself by which to assess and reassess its own results”; it “must be related to some more fundamental assessment of human values and of the purposes of society.”Footnote 182 The relevant standard of reference, according to Radcliffe, is human flourishing. “We must see ourselves … as committed for good to the principle that the purpose of society and all its institutions is to nourish and enrich the growth of each individual human spirit …. This is the only permanent public policy”, for “the only freedom of the individual that has ever mattered absolutely” is “the freedom of every man to discern what is good and to choose it for himself.”Footnote 183 So it is that he commits himself to the idea, noted earlier, there is a complex of liberties the preservation of which is essential if people are to be able to choose how “to form their characters”.Footnote 184 The argument is not that these liberties should be preserved for the sake of human happiness – that, Radcliffe regularly insisted, cannot be the correct criterion.Footnote 185 “We may not” – he liked to quote these words reputedly spoken by Thomas More – “look at our pleasure to go to heaven in feather beds; it is not the way.”Footnote 186 A “choice that has been deliberately made” may cause the chooser unhappiness – consider those of Hitler's compatriots who opposed his “overwhelming armament of evil with no certainty but that of their own destruction, with the knowledge that they brought ruin upon their families and their associates” – and yet still be the choice for “good suffering”, for “what [the chooser] hold[s] to be good and right in human life”.Footnote 187
The maintenance of legal authority depends, Radcliffe believed, upon the willingness of legal officials to abide by this natural law perspective on the world.Footnote 188 Officials who do not abide by this perspective – this time he took the words from Edmund Burke – will sleep upon their watch.Footnote 189 Officials who do so abide will treat as non-expendableFootnote 190 and “of greater value than themselves”Footnote 191 those “rules of dealing between man and man … which are just as valid for the powers of government as they are for the Court of law or ordinary private life”.Footnote 192 But we know that Radcliffe wondered whether the country was becoming ungovernable and from where the next breed of navigators – those with the capacity to steer by law's compassFootnote 193 – might emerge. “This is a generation that has seen the powers of evil menacingly at large”, he observed in 1952, and “it is not easy to feel sure that the virtues which one was taught to admire … are not survivals from a different order of things for which society is coming to have no use.”Footnote 194 Over and again throughout his writings there are exhortations to the effect that the lasting legitimacy of a solution depends upon its being devised and implemented by “wise and public-spirited men”,Footnote 195 “gather[ed] together” from “the cultured classes” and sharing “the common ground of enlightened opinion”Footnote 196 (though even these “enlightened and intelligent men”, it seemed, would have to be “set … a course of reading” if they were to “have some coherent idea of the principles upon which they should exercise their enormous responsibility”Footnote 197).
Radcliffe's belief that there is a genuine body of the great and good which can serve as society's much-needed navigator-class, upholding and maintaining those values which are integral to human fulfilment, contrasts somewhat with his gloomier reflections on the world. “The gulf between the present and the past, which gets wider and deeper with startling speed,” he wrote in 1958, “marks the general inability which afflicts society not merely to agree with earlier beliefs about the place and purpose of human life in its temporal existence but even to have any beliefs about that matter at all.”Footnote 198 Modern citizens appeared to him to be all too often lax, undisciplined, little if at all concerned with self-improvement or -enlightenment: “there is in effect no searching of heart or mind as to [human] possibilities or … duties”.Footnote 199 This “abdication of personal responsibility of judgment” seemed to have “come about … because the majority of members of society … always beg not to be required to keep themselves in training.”Footnote 200 H.L.A. Hart confessed to being confounded by this outlook. “Presumably [Radcliffe] values a Christian society”, he commented, but, if he does, “[h]ow can he reconcile this with his low estimate of the importance of kindness, benevolence and good will”?Footnote 201
Hart did not quite have the measure of the man: although Radcliffe did sometimes struggle to reconcile his natural law instincts with events in the world – the “considered, theorised denial of any common bond uniting man with man” which must have preceded the atomic bombing of Japan in August 1945 he found especially shockingFootnote 202 – the very fact that he had those instincts indicates that he viewed human potential optimistically.Footnote 203 The real cause of Radcliffe's pessimism was a set of modern conventions, developments and ideologies which, as he saw it, contrived to extinguish such potential. The “sheer inanity” of our “Age of Credulity” – the “pervading vulgarity and cheapness of tone”, the absence of “any adult conception of the nature or dignity of Authority”, the public's “perpetual and aimless grin”Footnote 204 – is lamentable enough. Nor should we be anything other than embarrassed about the fact “that, as our technical mastery of the means of communication increases, there is a corresponding decrease in our power to employ those means in any way that it worthy of their possibilities.”Footnote 205 Yet worst of all is the spectacle of a world gone soft on welfare and insurance:Footnote 206 a world in which citizens are armed to the hilt with rights yet minimally encumbered with duties,Footnote 207 in which “needs” are assumed to “generate remedies”Footnote 208 and the public expects solutions to problems to be “hand[ed] out” rather “as a doctor writes a prescription for a patient”,Footnote 209 in which many people seem to have lost sight of the fact that “life has to go on, and [that] in a progressive society it is better that grievances, if they are not vital grievances, should be forgotten, rather than put right at the expense of public time and energy.”Footnote 210 That “mere living”Footnote 211 is something to be cherished made it all the more difficult for Radcliffe not to despair over attitudes and expectations which, as he saw it, were responsible for the intellectual, cultural and spiritual impoverishment blighting so many modern lives. The apparent inescapability of this despair was, for him, reason enough to be convinced that he would never belong to the era in which he lived.
VII. Darkness at Noon
Why did Radcliffe feel this way? There is an obvious hazard in looking to his life-story for an answer to this question, for when we seek to explain something about a person by reference to some event or events in his history, we place ourselves at the mercy of the non-verifiable counterfactual: since we have no knowledge of how that person would have turned out had his life experiences been different, we cannot be sure how the life experiences he did have shaped the person he became and the actions he took. In Radcliffe's case, nevertheless, there is good reason to think (as did Radcliffe himself) that his experience of World War I shaped his character and formed his outlook for the rest of his life.
Before becoming an undergraduate at New College in 1919, Radcliffe was in military service. Owing to poor eyesight he was graded medically unfit for fighting and so he was commissioned as a subaltern in the Labour Corps. His medal card at the National Archives (ref. WO372/16) shows that he was sent to France in the summer of 1918. Little can be established about his experiences there – there are few records of the activities and locations of Labour Corps units – though it appears that on arrival he travelled eastwards through the Loire Valley, to Paris, and eventually to Alsace.Footnote 212 The likelihood is that his unit was responsible for carrying equipment and supplies and, under the supervision of the Royal Engineers, for helping to maintain railways, roads and bridges, and water and power supplies. It is almost inevitable that the unit would have come under fire – many from the ranks of the Labour Corps returned home wounded – and it is even possible that it would have been deployed as emergency infantry.
Radcliffe's demobilization coincided with the publication of a volume of poems he had written throughout the war years.Footnote 213 One of his contemporaries at New College, Maurice Bowra, wrote that they “reflected with much dexterity the influence of A.E. Housman and Austin Dobson”,Footnote 214 though the likelihood is that Radcliffe's own honest assessment of the poems – he appears never to have drawn attention to them in later life – would have been that they showed a fairly limited imagination and technical ability. He invariably used iambic pentameter, favoured writing in quatrains, and the dominant – rather overwrought – theme in the earliest poems is death, separation and the possibility of reconciliation in an afterlife.Footnote 215 The poems shift up a gear, nevertheless, when Radcliffe's attention turns to those “dear friends we knew a year ago”, who “died across the seas.”Footnote 216 “All these poor flowers Life's chilling frosts have nipped”;Footnote 217 “[t]hey will never hear the April music more.”Footnote 218 Yet while he would have “give[n his] life … to have them back again”,Footnote 219 he would “sigh not at all for the past, but dream of an endless to-morrow.”Footnote 220 “For all the grief that dims my eyes,” he declared, “I would not have it otherwise.”Footnote 221
Radcliffe's emphasis on optimism and regeneration, on “[t]he new life … begun”Footnote 223 rather than on “sorrow for things past”,Footnote 224 is deceptive. For although the war was not the only harrowing spectacle he ever experienced – his settling of the boundary between India and Pakistan “in the knowledge that pogrom lurked either side of almost every line he drew” clearly troubled him in later lifeFootnote 225 – it was the one which seemed to scar him most deeply. Contributing to the centenary issue of his school's magazine in 1962, he recalled Haileybury before and after August 1914. His first two years there “seem[ed] sunlit. There was a mellow light over England …. Games were our great concern” and “the future … seemed to lie in the capable hands of a benevolent order.”Footnote 226 But “[t]he outbreak of war changed all that …. Soon names began to appear on the Roll of Honour that was kept posted up at the Lodge.”Footnote 227
In a quiet and passionate way the School, which had been so self-contained, was flung into the full experience of the war. There was such brevity in the transition from schoolboy to soldier that no isolation was possible. Only nine months or so separated the Prefect crossing the Quad from the young officer in the trenches and many of them would hurry back, on their scanted leaves, to revisit the buildings, the fields and their friends. Often it was to be a last visit. My years at Haileybury were intense and happy, but I do not wonder that, when I look back, I see the war years under a shadow.Footnote 228
The shadow never really lifted. “[T]here must always be some darkness at high noon,” Radcliffe observed in 1953, “there will always be a line of shadow against the sun.”Footnote 229 Fifteen years later he noted how his own “reaction to life was formed by the War of 1914–18,” of how it had “made [him] its own.”Footnote 230 In a passage so personal, tender and well crafted that it warrants one last long block-quotation, he elaborated: with the war,
[t]he Spring had gone out of the year, and it never came back. I know that, for myself, I never expected it to. I have now lived for more than three times the span of years that was allowed to contemporaries of mine at school whom I loved and who perished in the storm, yet much of what happened then is clearer to me in memory than anything that has happened since. What stands out so clearly, so clearly that it remains as the dominant impression, is a certain uncomplainingness, and acceptance, without dramatics and without self-pity, of their sad and untimely fortune. Those young men, who were only promoted boys, took their lot with a dignity that we now forget. There was nothing in this of stupidity, nothing sheep-like …. [T]hroughout there shone a brightness of spirit that no fate dimmed, and I have carried with me into the long years of growing up a settled admiration for that special kind of courage that, without illusion, sustains an unequal burden to whatever the end may be.Footnote 231
The core sentiment here – that the dignity of the past, even if it might never be recovered, ought always to be remembered – is a familiar one. But this makes it no less compelling an explanation of why Radcliffe should have been the man that he was. His emphasis on the relationship between choice and character-formation and on human capacity for self-fulfilment, his intense admiration for the martyr, his commitment to public service and his devotion to culture, his desire to understand rather than recoil from the unusual and the unfamiliar, his disdain for the feckless, the shallow, the complacent, the bearer of the petty grievance and those who would hold the world to be somehow in debt to them – all of these characteristics begin to make sense once we see him as a man emerging sadder and wiser from World War I. It was noted earlier that he shared Holmes's belief that the best test of truth is the marketplace of ideas. This is not all that these two men shared: both discerned complacency among those who, unlike themselves, had not experienced war at first hand. “Men are apt to prize” advantages such as liberty “the less the longer we enjoy them”, Radcliffe observed,Footnote 232 much as Holmes thought that “[w]e have been comfortable for so long that we are apt to take it for granted that everything will be all right without our taking any trouble.”Footnote 233 “[I]n the easy times”, Radcliffe lamented, “the light dims”;Footnote 234 we begin to “take so much for granted … and by so doing … impose such heavy strains on our good sense.”Footnote 235 When this good sense is compromised, we stop appreciating that toil, privation and misfortune are among life's blessings, that suffering “toughen[s] our intellectual and imaginative fibres”Footnote 236 and prompts us to make the best of what we have.Footnote 237 By the middle of the twentieth century it seemed to Radcliffe that this basic insight into the human condition was fast becoming, if indeed it was not already, lost to the modern world.
